Saleem & Ors (Appellant) VS The State (Respondent)

IN 'TI{E HIGH COURT OF SINDH'

(JIR"CUI'T COURT HYDERABAD

Before:

tvt.. .lr"ti"e Naimatullah Phulpoto f Mr. Justice Mohammad l(arim I(han Agha Cr. Appeal No.D-29 of 2015'

Saleem and another

Versus.

The State

Salman Ghani, l\lrpr:lli.rttls : Saleem and Through Mr. Saad ;rt trtl.ltet' Advocate

l"r:l:portrlettt : 'The State Through SYed Meer al Shah Bukhari,

APG

x lr:rlr- of lLeat'inp; 76.O5.2017.

I l:,rte r-rl'.i trtlgment t6.o5.20r7.

JUDG M ENT

is directed

NI()I.IA]![NTAD I(ARIM KHAN A GHA, J.-

This aPPeal r|.r,irrn:rt tJre jurctgrnent clated 31'03'2015 passed by learned Special ,ltrrt;:;e lbr Cl\S, Hyclerabad, in Special Narcotic Case No'46 of 2013' :rrtrilul,, txrl of Crime No'165/2O13, registered at Police Statiorr (PS) of Narcotic a llalri, t'lyderabad, under section 9(c) of Control saleem and llrrl:stances l\cl:-, 1997 (CNSA), whereby the appellants I ';r,;l rr,l \4elrrrrood have been convicted u/s 9(c) of CNSA and' and to pay the fine of ,,.,rr{errr.erl Lo suffer RI for 04 years & 06 months in payment of fine they were r,f;i,,.r !,()r)o/- each. In case of default rrit'[erer] to suller simple imprisonment for O5 months more (the rrrrlrtrgnecl judgment). Benefit of Section 382'B Cr'P'C' was also ,-r(Lenrlerrl to the accused' tsz

E it-t

as disclosed in the FIR are 't Brjef facts of the prosecution case were alTested on 26'O9'2013 at ilrat lrtrLlr the aforementioned accused Bypass' Hyderabad' by a police ',1'-.lti() ll.,ttl's tr,t Chang Curve' Hatri amongst others l-y heacled by SIP Khalilullah Jukhio' which ;rar Saleem and Rashid were said to irrr:lttrlerl t{C Abdul Razzal<;Accused I 15OO grams and 125O grams charas respectively' l,r: tbttrtr:l llossessing 'l'l re r;amples of lo0 grams'tt"h *"'" taken out from the said narcotic the' i,rr ,:lrertrical "'Ay"l" sealed separately' Thereafter' Td as stated above' were sealed ancl memo of arrest , r,irlr'alrttrt<l it.erns, was prepa-red on the spot in presence of mashirs' irrrtl tc(:overJT brought at police station 'l'lrr'rr:irf(er, a.ccused and case property were rvltelelI.I.l{.rra'slodgedbySlPKhalilullahJukhioonbehalfofthe iiLate urriler section 9(c) CNSA'

investigation' Investigation Officer recorded 161 Cr'P'C' .i l-)rtring of the substance f dnatas were sent r;laterrtetrls of the PWs' Samples through PC Jeen and i,r llre chemical examiner on 07'10'2013 was received' On the conclusion of lrorii l.tve. chernical report against the accused for offence rrLvest.igitt-ion challan was submitted x ,r /ri' )(<:) ol (-lrlSA.

against accused at F;x'2 u/s 9(c) of | 'I\'ial cortrt framed charge accused pleaded not guilty and claimed to be tried' ,rll\il1\, io rvhit:h, Complainant / sIP l(halilullah i\{ tlrt- ttial prosecution examined PW-1 of arrest and recovery at trx'3/A' rr{ ll)x.l-t. IIe procluced mashirnama l"lllal-)1x.3/B,copyofRoznamchaentriesofdepartureandarrivalat

PW-3 SIP

at and 3/D; PW-2 / ASI Abdul Karim at Ex'5; l'ri: l1:r.13lo at Ex.6, he produced chemical examiner report lVlrrlratrunacl Changal mashir / HC Abdul Razzak al F;x'7 and thereafter' :ri 1',rL"ti/l't; PW-4 closed at Ex'B' a l,r()iier;ltl-ion sicle was

,; u/s 342 cr'P'c'at Ex'9 arrd l:ilraterne,t of accused were recorded !il1\r:r:ltserlr-teniecltheprosecutionallegationsanclclaimedtheirflalse in their statements stated that ,rrLplt,:atitttr in l-his case' Both accused goar-s from Nlazda at Bakra Mandi they were going to r'rller rtrtloadirrg irud at. Pathan Colony CIA police stopped them and dernanded l(rrrat:hi in this false rltcp,;rrl g;ratilication ancl on refusal CIA police booked them vl.

r.!)

declined to r:ill-iC l\r:cusecl dicl not lead evidence in their defence and 1,i1ir-. lit.i.rt'etrler-rts on oath

for the rr. l,cirlned Special Judge after hearing the learned counsel trilr't leii irncl examining the evidence available on record convicted and Y l ir: I t Lt: t ttlr: d ihe appellants as stated above through the impqgr-recl jr rdg,luertt. Flence this aPPeal.

l,-irr.nerl t.rial court in the impugned judgment has already ,[iri(ruiirie]('[ Llre evidence in detail ancl there is no need to repeat the repetition' i;ir1rr{' lr,:re, se as to avoid duplication and unnecessary ;i IVtr. saacl salman Ghani, learned advocate for the appellants has place of ,:,rtit:t-rclerf that the prosecution case is highly doubtful; the rrrt:ir'lerrl was located at trusy spot, yet, none from public was joined to iu riic:;i llr< an'rest and recovery; there are material contradictions eviclence, hence it cannot be relied upon;

that there'was l,r1,r,ie(:ution examiner ancl ,lt:lir1, irr senr-ling the case property to the chemical iilrrrl)r.t.rrg with the case property durir-rg such period could not be r ulerl trtrt. It. is argued that alleged recovery was made on26'09'2013' a wlrer ci,rli tlre samples were sent to the chemical analyzet on' been brought 1)'r l().:l()llt wit.h a clelay of 12 days and no evidence has periocl' ilrr ilrr,- rtcofcl that charas was in the safe custody during tl-rat lle littlherargued that PC Jeen through whom the samples of charas \\ir]|'rr i.jertl Lo ctremical examiner has also not been examined' Lastly he

irrllue(l lhat ttre accused have been involved in this false case clue to ilrt'rr [i-ri]rtre t-o pa17 illegal gratification to the police' appellants

11.lir sr.rl.rport of his contentions, learned counsel for the r-il,orr ttre cases of llsrormutla1n & others a' the State (2015 r t-[tr, I

,'jlr-llll/,,.1 1OO2), ffrrssain Bux a' State (2017 PCr'lJ 5OI/' He also

tlr o(lucer-l cerl-ifiecl copy of the judgment passed in Cr' Case t..lr,. l{)'.llt/2O t13, whereby both the appellants were acquitterl in' , i1pv111':rrli:rI i)I.irne bearing No'166/2013' registered at Police Station t-lrriri, rlttrler section 3/4 PEHO' to the Itt liyerl lV1eeral Shah, learned D'P'G' very fairly conceded not support r,orrlenl.irttts of learned counsel for the appellants and did ilre irnprlgned judgnl.r,.,

3;t

Il We I'rave carefully heard the learned counsel for the parties' .r ilrrred the entire evidence and consiclered the relevant case law.

l:"1, 'l'he lirst. point to be considered in our view is that this case is .ril Ul{ r;lroot case. In essence the appellants along with 2 other a ;rlr:;r:or-tt.lirtg accused were stopped by the same PW's whilst driving a lVlirztla trrrck in which l6 blue bags containing bhang were recovered ;rltlrr}-,, rvil-h 1.1-re alleged charas recovered from the appellants in this ';r;,;t';. 'l'ire rrppellalts were tried separately u/Artcile 3/4 PEHO ilt ,eriper:t ot the t6 blue bags of bang and both were acquitted by the , tvil .ltr,lBe antl .iudicial magistrate IX Hyderabad vide judgment dated :li 1l lt0lb mainly on account of the failure to join independent lVrrshirs, l-he clelay in sending the chemical report and the lack of any l,tool'o{ sal'e custody of the recovered substance. This Judgment has :,ii.;rrrrerj lirrality and in essence revolves around the same PW'srand ,,;irnilar"evidence as was produced before the trial court in this case' lii. 'l'tu-rring to this case we find the following defects in, the

(a)il-rat. clespite the spy information being received 3 hours in adval]r;e of the Mazda's arrival no effort was made to arisociate an independent mushir despite there being plenty rtf time to do so. In this respect reference may be made to the r;ase of }lusscin Bux case (SuPra)

(b)tLrat there are major contradictions in the evidence of ttre F'\A/'s (lbr example according to PW Khalilullah who was the (:orrlplainant and who also made the arrest and recovery a l.ilack t:olour plastic teli was recovered from right fold shalwar i-if Rashid which contained one big piece and one small piece o[ clraras weighing 1250 gms whilst on searching the Mazcla r.rnder the seat of driver Saleem one big piece and one small lrier:e o[ charas was recovered weighing 1500 gms' Wlrr:reas ;ic{r{l-ding to PW Abdul Razzdx who rvas a mushir a blacl< ,-:oltiurecl shopping bag was recovered from the side pocket of l-ialeent containing one big piece and one small piece of ,'lraras weighing 1250 gms ancl a black coloured shopping

5 c?.1

bag was also recovered under the seat of Rashid containtng orre big piece and one small piece of charas weighing ll.rO0gnrs. This in our view is a major contradiction' Likewise (.he sl-al-ement during cross examination that Saleem's parcel r,r:rrr(ained one big piece and 3 small pieces) It is true that Y ones Lninor contradictions can generally be ignored but major :;uch as these cannot especially where there is llo In irr(lependent mushir and only police officials are involved' tlris respect reference may be made to the case of Zalrtr Khan & ol:hers v. The State (1995 SCMR 1793)

(c)thal. according to the PW Abdul l(arim who registered the

l,'ll1 the time of arrival of the police party with the accused irrrcl the case property was on27-09-2013 at about 0015'This inias l-lre same time when the FIR was registered' In our view

ihis timing is not believable as the arrival entry had to come lirsl aucl then the registration of the FIR at least L0 to 15 Irrlnrtl-es later not at the same time. Such position further tlamages the credibility and reliability of the police' 1,'l) i-hal- lhere was over writing in the memo of arrest atltl recovet-y concerning its date 3 times which went completeh' rrnexplainecl. In this regard reference may be made to the ,.rase of "flusscin Bux cqse (Supro/

(e)that the IO PW Muhammed Changal carried out such a ;roor investigation that he did not even visit the place of waldal. ancl according to his evidence during cross i:rxamination the SHO sent the samples to the chemical ex.a.miner whilst at the same time PC Jeen deposited the sarnl:rles which is clearly contradictory'

(t)thal there was an unexplained delay of 12 days betweeu returvelirrg the charas and sending it to the chemical examiner'. During this period there was no evidence of where t.he charas was kept and whether it was l<ept in safe custocly (,r rrot. Further PC Jeen who depositecl the samples with the ckrertical examiner as per the Report was not examined to confirm either the safe custody or safe transit of the charas to y/ {

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c:' .)

Ihe chernical examiner. Thus, there was opportuuity for' interl-ering with/tamper-ng with the sample which may aloue is lrt: lirle-r[ to tl-re prosecutions case' In this respect reliance qilacerl orr Lhe case of II{RAMTJLLAH & OTHERS V/S' 'l't-11:'

,:;|,\'fD QO15 SCMR 1002), the releuan'Lt portion of whicLr' is J reptrochlced, below for ease of reference:-

"5. ,trt the case in hornd not onlg the report submitted ' by ttrc Chertico,l Examlner wols legallg lae'onlc bul: si1"e eust odg o;f the recouered substance as well tts uila u'ont*ittior. of the separated samples to the ,111i*, o.f the Chemiio,l Dxanniner had also not been established bg the prosecutlon' It ls not dlsputed t'hnt the hwestigaiing i77t.", appeartng before the lean'necl of the;

Lri<ll eourt naa iaiia to eaen mention the nome potice officiat ino noa taken the samples to th,e o'fflc<t of tlte Chemical Exannlner and admtttedlg no such itrfi<:e offictat hanl been produced before the leafneel t:r-irrl Couri ta depose Lbout safe custodg of tlrc snnr;rles entnrsted to him for being deposlted ht tlrc o.fliie o.f tlrc Chemtco,l Examtner' In thls ulew of tlrc ittuttet' the prosecution had not been able to estqbllslt. th<rt qfter the atleged. recouery the substance so recoaered uors elthei tcept in safe custodg or that the suntples toLken from {nu recoaered substance hctd sr11'e;tg been transnitted to the offi'ce of the Chemical .tixturriner wlthout the same being tampered toitlt ot' reltlacecl white in transit,"

(r:,) 'l'frr: apltellants put there defense to the prosecution wittrcssc:'

l.l rr.orlghout. Namely, that the case had been foisted ot-r thcrtr lrrlt:aLlse the]' refused to pay illegal gratification to the police'

(lr)'I'l-rr.lt tl-re appellants have already been acquitted by the trial t;rir u:.1. in Lhe main case as mentionecl above which 'nva5 lfa5s1[ r-r1r

llre s.ianre PW's and similar evidence.

l,l. '['trr-rs for all the factors mentioned in Para 13 above we find that ilrr. lrrr)s;ertrt-iorr tras completely failed to prove its case against the irl.)l.)Ellants. llven otherwise it is a well settled principle of law that tl're

apl)ellant.s are entitled to the benefit of the doubt. In this regarcl refererr<:e may be tnade to the case of Tariq Peruez V/ s' The State .t ,,'t r

(li)g!; S,'Cll4i? 1345), where the Honourable Supreme Court held as

rtrrrlr't

'1I't is settled lau that tt 7s not necesso;ru that there sltou'lcl morflg circumstances credting d'oubts' If there is rr sing le circumstance, which creottes re@son'able tl<trtbt in a prudent mlnd about the gullt o'f the at:cusecl, then the accused wtll be entltled to the lrctrclit rrot as a matter of grace and coneession bu't a's tt trtdl'ter e5f rtght,"

tl., ll'or {.he above stated reasons, we hold that prosectrtiotr has tirilr, l to;rrorre its case against the appellants, therefore' by short

,rr.rler. dat.ed 16.o5.2o17 while extencling the benefit of doubt, appeal \^,irii :.rll,.^vecl. 'lhe impugned order was set asicle and bOth the iil)llella(r|s (Saleem and Rashid Mehmood) were acquitted of the ,:111tr1.,,-.

It, l\tiove are l-he reasons for our short order dated 16'O5'2O17 ' lltirlt.r;rl.t;.trl \ rl,, ,l l)rrttrl: \r, , t t'i fl JUDGE

JUDGtr